Lawyers' online acts could land them in court

Oct 11 2011 - 2:07pm

To help her colleagues spot and ultimately steer clear of the career pitfalls of social media, chat rooms, message boards and blogs, Pennsylvania attorney Jennifer Ellis has developed a popular online continuing legal education course called, "I'm Begging You -- Please Don't be an Idiot on the Web."

Ellis, a consultant who specializes in the intersection of ethics and technology, does not suggest avoiding such forums altogether. However, it's important to realize that dangers abound for lawyers on the Internet.

She represents part of a growing cohort of legal professionals helping their peers learn to navigate the Web ethically, safely and intelligently, and she has amassed a colorful collection of the mistakes that lawyers around the country have made to serve as warning to others.

Some of the violations Ellis cites are beyond the pale, such as the California lawyer who posted an ad on Craigslist for a secretary and then explained to a job candidate via email that she would have to have sex with him as part of the interview.

The job seeker reported the incident to the bar association.

In most cases, avoiding legal and ethical violations is a matter of common sense. The No. 1 rule, Ellis said, is: If you can't do something offline because it's unethical behavior, then you can't do it online either.

There are instances where forwarded emails have ruined careers. And, of course, the likelihood of getting caught if you post something on a public forum is exponential.

Which is why Harold M. Goldner, an Internet-savvy employment lawyer, was shocked to discover a blogger with a law degree lambasting his soon-to-be-ex-wife's divorce lawyer on his personal website.

The divorce lawyer was running for Common Pleas Court in Montgomery County, Pa., and the blogger critiqued him at length in an open letter. In the post, Goldner noted, the blogger claimed he was a lawyer but failed to mention he'd been administratively suspended, which is a violation of the rules of professional conduct.

The missteps lawyers make, according to several attorneys who track them, seem to fall into a few categories. On sites like Facebook and MySpace, they say, lawyers should beware of false "friending" -- in other words, seeking out or accepting online friendships with witnesses, judges or jurors, especially using a made-up identity, or having someone pursue false friendships on their behalf.

Florida has a law that it is illegal to "friend" a judge.

Elsewhere in the country, there is no explicit prohibition on judges being Facebook friends with attorneys who may appear in their courtrooms. It is up to individuals whether that relationship has the appearance of impropriety, but they should know that any communication they have in quasi-public forums are a permanent record that others may see.

On the surface, it seems obvious that attorney-client confidentiality must be upheld online, but lawyers may slip up inadvertently.

The public defender referenced a client whose case had been adjudicated and revealed that the client admitted to lying on the witness stand. Since lawyers are prohibited from disclosing perjury, she was called before the disciplinary board in her state and fired from her job of 15 years.

Attorneys may also harm their reputations if they share too much personal information on social networking sites. Goldner said he keeps his Facebook profile private and strictly personal, and, "for the most part, I don't friend clients or colleagues." He consciously opts not to have any professional Facebook presence, though he knows other lawyers who do choose that route.

If you have a professional blog where you comment on legislation or court rulings, several experts said, avoid getting specific in back-and-forth comments with readers and be sure to have a disclaimer explaining that information in the blog is not intended as legal advice.

Another matter bloggers or prolific legal commenters should consider is whether they are licensed in the state or country where the person is reading the dispatches lives. If they are not licensed to practice in the reader's jurisdiction and the reader interprets the comments as legal advice, the attorney could face charges for the unauthorized practice of law, which is a crime and could be subject to disciplinary action before the state bar.

In addition to watching their own backs, lawyers must keep an eye on their clients' online behavior. If attorneys fail to monitor their clients' online posts while a case is pending, it can backfire in court.

Despite the litany of cautions, several of the experts agreed that it's still important for a law practice to have an online presence. The key is to do your homework and get legal advice of your own as you go about it.

(Contact Gabrielle Banks of Pittsburgh Post-Gazette at ppgbanks@gmail.com.)

(Distributed by Scripps Howard News Service, www.scrippsnews.com.)

 

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